There can be little doubt that foreign workers are in a vulnerable position, and there are incidents of labour exploitation reported in the media.[1] There have also been reported cases of debt bondage, where the workers involved are dependent on the support of their sponsors.[2] None of these instances, however, have resulted in trafficking charges. This may be due to a number of reasons, including lack of evidence, failure to report cases to the Australian Federal Police and other law enforcement agencies, and also the fact that many situations of labour exploitation do not contain all the elements of the offence of trafficking in persons. Specifically, employers who fail to comply with industry standards for their workers generally do not meet the criteria of Division 271 offences.

The possibility of labour trafficking occurring in Australia was raised in a 2004 report published by the Immigration Department, which stated that ‘people trafficking can occur in any industry’ and is not limited to the sex industry. The same report, however, also noted that:

the existence of people working illegally does not mean that they have been trafficked. Similarly, individuals who find that their working conditions are different from those which they anticipated are not necessarily trafficked.[3]

Thus it is clear that many instances of labour exploitation will not amount to trafficking. However, there are also cases where labour exploitation could potentially amount to trafficking, yet there appears to be a reluctance in the criminal law to deal with such cases in the same manner as sex trafficking cases are dealt with.[4] Most of the commentary and studies on the issue of trafficking and slavery focus only on sex trafficking.[5] In addition, although the Criminal Code (Cth) criminalises all forms of trafficking, not only sex trafficking, it is really only sex trafficking that has received political attention. In the inquiry into the Criminal Code Amendment (Trafficking in Persons Offences) Bill 2005 by the Senate Legal and Constitutional Affairs Committee, discussion regarding sex trafficking dominated. Trade unions and other groups that aim to raise awareness of labour trafficking were not even present.[6] Nevertheless, there is some limited evidence which indicates labour trafficking may be occurring as seen in the cases discussed below.

In Australia, the predominant reason espoused by legislatures for criminalising sex trafficking was based on the fact that it was morally wrong.[7] Even in the present day, views surrounding sex trafficking and slavery continue to be couched in terms of the immorality of the traffickers actions against their helpless victims.[8] Such restrictive views not only prevent people gaining a true understanding of the complex nature of sex trafficking (for example, the fact that many women do come to work in the sex industry willingly), but also completely ignores other valid reasons for why trafficking has been criminalised. The criminal law does more than uphold certain morals – it also aims to prevent various harms which may befall people.[9] Thus the criminalising of trafficking may be viewed as protecting people’s basic rights to food, liberty and safety.[10] If trafficking were viewed in this light there would be no basis upon which the criminal law could distinguish between sex trafficking and labour trafficking.

It must be noted that the trafficking and related provisions in the Criminal Code are not actually phrased in any such moralistic terms, and as such there is nothing in the Code which prevents labour trafficking from being prosecuted under it. Rather, Cullen and McSherry argue that inaction by the criminal law in relation to labour trafficking arises from the perception that sex trafficking is somehow more ‘wrong’ and worthy of punishment while labour trafficking is not.

It is worth noting that the Australian Institute of Criminology (AIC) is holding a forum on labour trafficking in June 2009. Various government agencies, non–government organisations, unions, researchers and others groups will be present at this forum, where discussions will revolve around labour trafficking and possible responses to the problem in Australia.[11] In addition, the AIC is also conducting an online survey to gain an understanding of community perceptions on human trafficking. The survey covers issues including labour exploitation and illegal migration. These developments may be indicative of gradually changing attitudes and a realisation among policy makers that labour trafficking is as serious a problem as sex trafficking.

Inspector Robert John Hortle v Aprint (Aust) Pty Ltd & Anor [2007] FMCA 1547

Yu Tu Chuan, the director of Aprint (Aust) Pty Ltd, travelled to China in 2005 to recruit people to work for his firm in Australia. He recruited four men, who were sponsored by the company and granted subclass 457 visas, allowing them to work temporarily in Australia.

The terms of the men’s written contract, which were attached to their applications for subclass 457 visas, detailed their annual salary, number of hours of work per week, overtime at a rate of $18.00/hour, and that monthly instalments from wages, totalling $10 000, over the course of one year would be kept by Chuan to cover processing costs (such as visa application). According to an article by Cullen and McSherry referring to this case, the workers were accommodated in a run down, unheated house approximately 200 meters from the business where they worked[12] and an amount of $120 per week was deducted for accommodation expenses and in some cases for utilities. [13]

Chuan (on behalf of his company) admitted that he had contravened the Workplace Relations Act 1996 (Cth) and relevant clauses of the Award by underpaying wages, underpaying overtime, failing to employ for ordinary hours not exceeding an average of 38 hours per week and failing to pay wages by cash, cheque or electronic funds transfer. The workers were underpaid a total of $93 667. The workers were repaid correctly within weeks of the action being brought to the Workplace Ombudsman. After considering a number of factors, the court imposed penalties of $9240 on Chuan, citing the size of the underpayments, the period over which they occurred, the apparent deliberate disregard by Chuan of Award requirements and the fact that it would not have been remedied if the workers had not brought the action.

Cullen and McSherry, pointed out how given the decision in the case of Wei Tang,[14] the Aprint case could potentially have been prosecuted under trafficking provisions. Section 271.2 criminalises trafficking which may occur in a number of different situations, including where a person ‘...organises or facilitates the entry or proposed entry, or the receipt, of another person into Australia...’ and deceives that other person about whether that person will be exploited, or is reckless as to whether the other person will be exploited. Exploitation is defined in the dictionary of the Criminal Code (Cth) to occur if ‘the exploiter’s conduct causes the victim to enter into slavery, forced labour, or sexual servitude...’. The High Court, in Wei Tang discussed the meaning of slavery. The Court recognised that it may be difficult to distinguish between slavery and exploitative conditions, and Gleeson CJ commented that an indication of whether a person is a slave may be (amongst other things) if ‘...powers of control over movement...extend well beyond powers exercised even in the most exploitative of employment circumstances, and [there is an] absence or extreme inadequacy of payment for services.’[15] Thus, depending on whether restrictions of movement and inadequate payment were severe enough to constitute slavery, the Aprint case could potentially have come within the trafficking provisions.

R v Yogalingham Rasalingham (2007) NSWDC, unreported;’ cf Fryer v Yoga Tandoori House Pty Ltd [2008] FMCA 288

Mr Yogalingham Rasalingam was the first person to be charged with trafficking offences under division 271 of the Criminal Code (Cth), and his case concerned alleged incidents of labour trafficking. Mr Rasalingam was an Indian restaurant owner residing in Glenbrook in the Blue Mountains near Sydney. He was accused of bringing Anbalagan Rajendran — another man from his home town in southern India — to Australia and forcing him to work seven days a week, sometimes for more than 15 hours a day. Mr Rasalingam was charged with trafficking a person under s 271.2(1B) Criminal Code (Cth), and with intentionally exercising control over a slave: s 270.3(1) (d). During the trial, the victim testified that upon arrival in Australia, his passport and airline ticket were taken away from him, he was forced to sleep on the floor, and was told by Mr Rasalingam that he would be deported if he complained to the authorities. Despite the severity of the claims, and the fact that Rasalingam clearly had control over Rajendran, the jury found him not guilty on both counts relating to trafficking and slavery. Rasalingam was, however, convicted of one count of dishonestly influencing a Commonwealth public official contrary to s 135.1(7) Criminal Code (Cth) for photocopying his victim’s signature on an employment contract sent to the Immigration Department.

Another case of possible labour trafficking was reported in the United States Trafficking in Persons report, of which an extract is shown below. However, as the report says, none of the alleged traffickers were charged with any criminal offences.

In January 2008, police uncovered an alleged labor trafficking situation in which Indian nationals who arrived in Australia on tourist visas were sent to a tomato farm in Jerilderie, New South Wales where they were held in virtual confinement and forced labor. There are eight administrative and criminal cases pending in this case. While some companies and persons were fined by Australian courts for violations that may have constituted forced labor offenses, there were no criminal penalties handed down to employers involved in forced labor.[16]

The cases above can be contrasted with cases presented below which may merely be considered labour exploitation cases. The question of where labour exploitation ends and trafficking begins is a difficult question, and one that given the limited attention labour trafficking has received, has not had been considered adequately by academics, policy makers, or the courts.

Mason v Harrington Corporation Ltd [2007] FMCA 7

In June 2005, Mr Margarito T Sorrosa and Ms Rosanna Ramirez Cabisidan were offered employment as chefs at the restaurants while still in the Philippines, as a result of a labour shortage in Canberra. They arrived in Australia on Subclass 457 visas, sponsored by the restaurant owners. These owners were later prosecuted for several breaches of the Workplace Relations Act 1996 (Cth) during the employment of Mr Sorrosa and Ms Cabisidan, mainly for failure to pay the appropriate Award rate, as well as failure to pay overtime and penalty rates.

Mr Sorrosa had also complained about being underpaid and maltreated to the Department of Immigration and Multicultural Affairs, the union and the Philippines embassy. He further alleged that, as a result of making these complaints, he was ‘kidnapped’ and almost forced to return to the Philippines against his will.[17]

The court ordered the immediate payment of the outstanding debts to Mr Sorrosa and Ms Cabisidan, as well as imposing a penalty of $64,000. The alleged kidnapping incident and attempt to forcibly remove Mr Sorrosa from the country was not discussed in the case.

Flattery v the Italian Eatery T/As Zeffirelli'S Pizza Restaurant [2007] FMCA 9

The owners of an Italian restaurant by the name of Zefirelli’s in Canberra were prosecuted for breaches of the Workplace Relations Act 1996. Ms Donabella Santos Cruz and Mr Napoleon Enriquez Arrieta were offered employment at the restaurant, and arrived in Australia from the Philippines on Subclass 457 visas sponsored by the owners of Zeffirelli’s. After investigations were conducted by the Office of Workplace Services, The Italian Eatery Pty Ltd was charged with several breaches of the Act during the employment of Ms Cruz and Mr Arrieta, mainly concerned with failure to pay overtime and other penalty rates. During the trial, it was established that Ms Cruz and Mr Arrieta were in an extremely vulnerable position, and had felt forced to comply with the directions of their employers. The court ordered that the outstanding debts be paid immediately with interest, and imposed a $50,000 penalty.

There have been media reports[18] and accounts in the Parliamentary Debates[19] that Ms Cruz from the above case, as well as a number of other workers recruited with her were “sold” by John Harrington and Ashley Delandar, their original employers, to Zeffirelli’s for between $6000 and $8000 each. However, there is no evidence of this taking place and there has been no case against either Harrington or Delandar. There is insufficient evidence to suggest that these incidents were instances of trafficking rather than labour exploitation.

The Skilled – Regional Sponsored (Provisional) Visa, otherwise known as the Subclass 457 visa, allows skilled foreign workers to enter Australia and work in a specified area for up to 3 years. It is designed especially for those who do not meet the requirements for an independent skilled visa, and have qualifications which allow them to perform work currently sought after by the Australian labour market. Introduced by the Government in 1997, it has been particularly popular with companies seeking foreign agricultural and horticultural workers, many of whom arrive from the Pacific Islands or South–East Asia. The visa allows the workers to enter Australia and work for up to 3 years, with the possibility of applying for permanent residency after 2 years. Although the visa has seen an explosion in the arrival of skilled foreign workers, it has been recognised that holders of the 457 visas are particularly vulnerable to exploitation.

In a recent article in its publication ‘The Worker’, the Australian Workers’ Union highlighted the need for a review of the current system for subclass 457 visas.[20] Although the visa assists Australian companies overcome the current skills shortages in various industries, the workers themselves are in an extremely vulnerable position, particularly those seeking permanent residency. This vulnerability stems from migrants’ dependence on their sponsor for continued employment, until the two–year work requirement is fulfilled and they can apply for permanent residency. There have been several incidents of worker exploitation reported, mainly concerning failure to pay 457 visa holders the appropriate award and penalty rates.

Reports also revealed unsafe working practices and conditions. In 2007, it was reported in that three workers holding 457 visas had been killed in work–related incidents:[21] a Filipino man who was thrown off the back of a truck and killed on a cattle station in the Gulf of Carpentaria, another worker from the Philippines who was crushed to death by two slabs of granite in a stoneworks north of Perth, and a Chinese logger who was killed by a falling tree in a remote state forest north of Brisbane. It was alleged that these deaths were the result of labour exploitation under the 457 visa scheme, as workers are afraid to speak out against those who sponsored their entry into Australia or complain about their work/workplace.[22]

Although reported incidents of labour exploitation do not usually fulfil the criteria for the offence of trafficking in persons, there have been reported incidents of ‘debt bondage’ occurring in cases reported to the trade unions. In an article discussing human trafficking in Australia,[23] Elaine Pearson outlined a case involving a worker from China, recruited from Shanghai to work in Melbourne, who started work in Australia with a $10,000 debt to his employer. Pearson writes:

The circumstances in this case clearly mirror the issue of ‘debt bondage’ commonly referred to in relation to cases of sex trafficking, however this case was not referred to the AFP. Pearson writes further that although there are incidents of debt bondage occurring in other Australian industries, the Government is reluctant to intervene or acknowledge a link between trafficking in persons and industries which rely heavily on the work of 457 visa holders.[25]

In response to these incidents and reports, the Department of Immigration and Citizenship (DIAC) released a series of reports in 2008, reviewing various issues relating to the subclass 457 visa scheme. The review culminated in a final report, the Visa Subclass 457 Integrity Report,[26] released in October 2008. The recommendations contained in the report highlighted the existing power imbalance between foreign workers and their sponsors, particularly in relation to those temporary visa holders who wish to gain permanent residency. One suggested alternative was to restructure the pathway to permanent residency in Australia, and for a greater emphasis to be placed on the length of time visa holders had worked in Australia, rather than relying on continued support and sponsorship from their employer. [27]